Case 1:16-cv-02114-CRC Document 28 Filed 03/20/17 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
KIRK E. WEBSTER, SR., )
)
Plaintiff, )
)
v. )
) Case No. 16-2114-CRC
JAMES N. MATTIS, )
SECRETARY OF DEFENSE, et al., )
)
Defendants. )
__________________________________________)

DEFENDANTS REPLY TO PLAINTIFFS RESPONSE TO THE

MOTION TO DISMISS

Plaintiff Kirk E. Webster has brought suit against various Defendants from the

Department of Defense (DOD) and the Equal Employment Opportunity Commission

(EEOC) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., alleging

claims of retaliation. As the United States argued in its Motion to Dismiss, or in the Alternative,

to Dismiss in Part and Transfer in Part, the Court should dismiss Plaintiffs claims against all

Defendants; or in the alternative, dismiss Plaintiffs claims against all Defendants but the

Secretary of Defense and transfer the case to the Eastern District of Virginia.

ARGUMENT

A. Venue is Appropriate in the Eastern District of Virginia.

As this Court has explained, Congress intended to limit venue in Title VII cases to those

jurisdictions concerned with the alleged discrimination, and the venue determination must be

based on a commonsense appraisal of how the events in question arose. See Spencer v.

Rumsfeld, 209 F. Supp. 2d. 15, 17-19 (D.D.C. 2002); see also Stebbins v. State Farm Mut. Auto.,

Ins. Co., 413 F. 2d 1100, 1102 (D.C. Cir. 1969) (affirming dismissal for improper venue and
 Case 1:16-cv-02114-CRC Document 28 Filed 03/20/17 Page 2 of 5

stating that Section 706(f) of the Act provides four judicial districts in which employment

discrimination suits may be filed and that [t]he venue of the right of action here in suit was

limited by the statute which created the right.), cert. denied, 396 U.S. 895 (1969); Tildon v.

Alexander, 587 F. Supp. 2d 242 (D.D.C. 2008) (there is a clear preference in employment

discrimination cases for adjudicating the claims in the judicial district most concerned with the

alleged discrimination.); Hayes v. RCA Service Co., 546 F. Supp. 661, 663 (D.D.C. 1982)

(Title VII contains a special venue provision, which limits the choice of available forums.)

(internal citation omitted).

Plaintiff argues that Washington, D.C., is the appropriate district for the adjudication of

his claim because NGA, his employer, undermined his EEOC settlement process, which took

place in Washington, D.C. (ECF 27 at 28-31). Interference with a settlement process is not an

act of retaliation for the purposes of Title VII. An employee must experience materially

adverse consequences affecting the terms, conditions, or privileges of employment or future

employment opportunities such that a reasonable trier of fact could find objectively tangible

harm. Kangethe v. District of Columbia, -- F. Supp. 3d --, 2016 WL 4769326 at *4 (quoting

Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)) (alterations omitted). Assuming,

arguendo, Plaintiffs allegations of settlement interference are true, they cannot form the basis of

a retaliation claimat most, these actions had an adverse consequence on an EEOC

administrative proceeding, not Plaintiffs employment with NGA.

B. All Defendants Except the Secretary of Defense Must Be Dismissed.

Plaintiff states that he is suing the Secretary of Defense and the NGA Director in their

official capacities, and he is suing all other Defendants in their individual capacities. However,

outside of the Secretary, who is the head of the DOD, none of the other Defendants are proper

 Case 1:16-cv-02114-CRC Document 28 Filed 03/20/17 Page 3 of 5

parties to this lawsuit because they are all employees of the Defendant agencies, and they cannot

be sued in their individual capacities. Hackley v. Roudebush, 520 F.2d 108, 115 n.17 (D.C. Cir.

1975) (a Title VII suit can be brought only against the head of the department, agency, or unit

against which the discrimination is alleged); see also Gary v. Long, 59 F.3d 1391, 1399 (D.C.

Cir. 1995) (stating that relief granted under Title VII is against the employer, not individual

employees whose actions constituted a violation of [Title VII]) (quoting Busby v. City of

Orlando, 931 F.2d 764, 772 (11th Cir.1991)). Therefore, Plaintiffs claims against all employees

other than the Secretary of Defense must be dismissed.

C. EEOC Employees Kenneth Morse and James Lee Must Be Dismissed for
Lack of Subject Matter Jurisdiction.

In Plaintiffs response, he argues that EEOC employees Morse and Lee should remain

Defendants because he is confident there is no federal statute that protects an EEOC employee

(or any federal employee) who abuses their authority to retaliate (settle the score) against a

whistleblower, because his disclosures resulted in their and/or their colleague or former

colleague being demoted or fired. (ECF 34). The fact remains that neither Morse nor Lee, as

individuals, may be sued under Title VII; and therefore, Plaintiffs claims against them should be

dismissed. Hackley, 520 F.2d at 115 n.17 (a Title VII suit can be brought only against the head

of the department, agency, or unit against which the discrimination is alleged).

 Case 1:16-cv-02114-CRC Document 28 Filed 03/20/17 Page 4 of 5

CONCLUSION

For foregoing reasons, the United States asks the Court to dismiss the claims against the

Department of Defense and its employees for improper venue; and to dismiss the claims against

EEOC employees Kenneth Morse and James Lee for lack of subject matter jurisdiction and

failure to state a claim upon which relief may be granted. In the alternative, Defendants

respectfully move to dismiss the claims against all Defendants but the Secretary of Defense, and

transfer this case to the Eastern District of Virginia.

Dated: March 20, 2017 Respectfully submitted,

CHANNING D. PHILLIPS
D.C. Bar # 415793
United States Attorney for the District of
Columbia

DANIEL VAN HORN

D.C. Bar # 924092
Chief, Civil Division

/s/
JOSHUA L. ROGERS
Assistant United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20530
(202) 252-2578
Joshua.Rogers3@usdoj.gov

Counsel for Defendants

 Case 1:16-cv-02114-CRC Document 28 Filed 03/20/17 Page 5 of 5

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of March, 2017, the foregoing has been

served on Plaintiff by first-class mail, postage pre-paid, and addressed as follows:

Kirk E. Webster
43184 Gatwick Square
Ashburn, VA 20147

/s/ Joshua L. Rogers

JOSHUA L. ROGERS
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W.
Washington, D.C. 20530
(202) 252-2578